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DFS Contested Case Hearing Process -

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Discovery in TPR Cases and of DFS Records in Other Contexts
Wendy S. Ross, Esq., Senior Assistant Attorney GeneralCJP Blog Talk May 9, 2019
TPRs are Civil Cases
The Wyoming Rules of Civil Procedure apply to termination of parental rights casesWyo. Stat. Ann. § 14-2-312Discovery demands are not appropriate – needs to be a request under the WRCP
WRCP Rule 26 Initial Disclosures
Rule 26 specifically exempts Title 14 actions from initial disclosure requirementsBecause TPRs are brought under Title 14, there are no initial disclosure requirements for any party in a TPR case
Limit of 25 questions, including discrete subpartsIf the Department receives a request with more than 25 questions, the Department will object to answering any question above the limitMust be answered within 30 daysBy the party to whom they are directedIn writing, under oath
ObjectionsMust be timely and specifically stated or they are waivedMust be signed by the attorney making the objections
Request for Production of Documents
RFPs are an appropriate tool to request production of the Department’s filein a TPR caseThe Department will produce the file with appropriate redaction in response to an appropriate requestThe Department will produce records in its possession, but may objecttoproducingdocuments not in its possession if those documents are easily available to Respondent (i.e., Respondent’s records)No limit to how many a party can ask
Request for Production of Documents
Must be answered in 30 daysIn writingResponses must be signed by attorney of record, or the party if the party is unrepresentedWRCP 26(g)(1)
Requests for Admissions
No limit to how many a party may askMust be answered in writing within 30 daysIf not answered timely, they are deemed admittedMust be signed by attorney of record or partyRequest to admit genuineness of documentMust be accompanied by a copy of the document
Leave of court generally not requiredDFS may object on basis that cost is not reasonableIf you are requesting more than 10 depositions, leave of court is required
Discovery Sanctions
WRCP Rule 37 requires a good faith attempt to procure discovery responses before asking for court interventionCourt is authorized to order sanctions for parties who violate a court order regarding discoveryIncluding holding a Respondent in contempt ofcourt and entering default
Protective Orders
A party may ask the court for a protective order to protect a party from annoyance, embarrassment, oppression, or undue burdenor expenseWRCP 26(c)A motion for a protective order must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action
Duty to Supplement Discovery Responses
Parties have an ongoing duty to supplement discovery responses in a timely mannerSanctions may be imposed for failure to properly supplement discovery responses
Pretrial Disclosures
Parties are required to disclose anticipated witnesses, including contact information, and anticipated exhibits at least 30 days before a trial (unless otherwise ordered by the court)Certain objections must be made within 14 days of disclosure (unless otherwise ordered by the court)
Pretrial Disclosures: Experts
Parties must disclose anticipated expert witness testimony at least 90 days before trial (unless otherwise ordered by the court)The Department most often uses non-retained experts (treating providers)Disclosure requirements are different than using a retained expertPay close attention to scheduling orders and language of WRCP Rule 26(a)(2)
Discovery of DFS Records in Other Contexts
Confidentiality provisions for different types of recordsCPS: 14-3-214APS: 35-20-112CHINS: 14-6-437Delinquency: 14-6-203(g)Juvenile probation: 14-6-306Benefits: 42-2-111 and 16-4-203(d)Child support: 45 CFR 303.21
Subpoenas in Criminal Cases
TestimonyTypically, the Department does not file motions to quash for testimony in criminal casesInstead, the DFS worker will raise the issue of confidentiality on the stand when questioned about the confidential informationIf the court orders the worker to answer, that is a court order sufficient to protect the Department’s concernsThe analysis for the Department will depend on what type of information is sought
Subpoenas in Criminal Cases
State v.Hathaway, 2017 WY 92To even get an in camera review by the court, the Defendant must show:The information sought is specificSubpoena must ask for specific documents or types of documentsThe information sought is constitutionally materialEvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermineconfidencein theoutcome.
Subpoenas in Civil Cases
Wyo.Stat. Ann. § 14-3-214(h) requires that a court find good cause to release information from child abuse/neglect records in civil cases
Requests for Information without Subpoena
Certain persons may request access to certain DFS records through a field office’s district managerSS-31APS-31But requests have to be for a specific purpose consistent with statuteManager decides whether to grant request for information
DFS Information/Records Tip
If you are wanting DFS records for use in a civil or criminal case, the AG’s office is willing to help evaluate your request, including accepting service of a subpoena…just get in touch with us





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DFS Contested Case Hearing Process -